{ "id": 8573188, "name": "STATE OF NORTH CAROLINA v. McKINNLEY JUNIOR CALLOWAY", "name_abbreviation": "State v. Calloway", "decision_date": "1982-06-02", "docket_number": "No. 165A81", "first_page": "747", "last_page": "758", "citations": [ { "type": "official", "cite": "305 N.C. 747" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "257 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "620" } ], "opinion_index": -1 }, { "cite": "298 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568416 ], "year": 1979, "pin_cites": [ { "page": "79-80" } ], "opinion_index": -1, "case_paths": [ "/nc/298/0047-01" ] }, { "cite": "368 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6239458, 6239078, 6237688, 6238379, 6238738, 6236789, 6238037, 6237080 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/us/368/0851-08", "/us/368/0851-07", "/us/368/0851-03", "/us/368/0851-05", "/us/368/0851-06", "/us/368/0851-01", "/us/368/0851-04", "/us/368/0851-02" ] }, { "cite": "192 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564078 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0220-01" ] }, { "cite": "259 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "285 S.E. 2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "304 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570356 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0658-01" ] }, { "cite": "165 S.E. 2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557876 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0108-01" ] }, { "cite": "128 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "894" } ], "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "91 S.Ct. 2283", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "29 L.Ed. 2d 859", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "403 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12043280, 12043226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0948-02", "/us/403/0948-01" ] }, { "cite": "167 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558608 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0288-01" ] }, { "cite": "273 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563625 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0001-01" ] }, { "cite": "254 S.E. 2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568468 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0227-01" ] }, { "cite": "263 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575769 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0690-01" ] }, { "cite": "166 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "110 S.E. 612", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "opinion_index": 0 }, { "cite": "183 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658527 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/183/0709-01" ] }, { "cite": "241 S.E. 2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573284 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0407-01" ] }, { "cite": "233 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569735 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0344-01" ] }, { "cite": "242 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574161 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0623-01" ] }, { "cite": "265 S.E. 2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "300 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559851 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0116-01" ] }, { "cite": "239 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566912 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0674-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "101 S.Ct. 372", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "66 L.Ed. 2d 227", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "449 U.S. 960", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11803324, 11803268, 11803117, 11803598, 11803378, 11803827, 11803669, 11803157, 11803512, 11803196, 11803454 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/449/0960-05", "/us/449/0960-04", "/us/449/0960-01", "/us/449/0960-09", "/us/449/0960-06", "/us/449/0960-11", "/us/449/0960-10", "/us/449/0960-02", "/us/449/0960-08", "/us/449/0960-03", "/us/449/0960-07" ] }, { "cite": "266 S.E. 2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560989 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0223-01" ] }, { "cite": "272 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "277 S.E. 2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571649 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0142-01" ] }, { "cite": "191 S.E. 2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562661 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0058-01" ] }, { "cite": "244 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "295 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561834 ], "year": 1978, "pin_cites": [ { "page": "130-31" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0126-01" ] }, { "cite": "82 S.Ct. 85", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1961, "opinion_index": 0 }, { "cite": "7 L.Ed. 2d 49", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "96 A.L.R. 2d 1422", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "118 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624570 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0101-01" ] }, { "cite": "172 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561357 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0339-01" ] }, { "cite": "204 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563941 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0256-01" ] }, { "cite": "278 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572874 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0293-01" ] }, { "cite": "97 S.Ct. 47", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "50 L.Ed. 2d 69", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 809", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6085, 7371, 6739, 5782, 5823 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0809-04", "/us/429/0809-01", "/us/429/0809-03", "/us/429/0809-05", "/us/429/0809-02" ] }, { "cite": "223 S.E. 2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570856 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0500-01" ] }, { "cite": "240 S.E. 2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570986 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0105-01" ] }, { "cite": "247 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566502 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0615-01" ] }, { "cite": "248 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564637 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0075-01" ] } ], "analysis": { "cardinality": 1097, "char_count": 25525, "ocr_confidence": 0.817, "pagerank": { "raw": 6.642185301514926e-07, "percentile": 0.9621854401550052 }, "sha256": "fe4853b3ed0d4c5cd8d0d5da9043999bc69ba9ea7026b120af5eb176e5ac104c", "simhash": "1:276ae0337103287e", "word_count": 4330 }, "last_updated": "2023-07-14T14:52:50.465071+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. McKINNLEY JUNIOR CALLOWAY" ], "opinions": [ { "text": "BRANCH, Chief Justice.\nDefendant first assigns as error the trial judge\u2019s denial of his motion for directed verdicts made at the close of the State\u2019s evidence and at the close of all the evidence. He argues that there was not sufficient evidence of premeditation and deliberation to carry the case to the jury on the charge of first-degree murder.\nWhen defendant elected to offer evidence after the denial of his motion to dismiss at the close of the State\u2019s evidence, he waived his motion to dismiss at the close of the State\u2019s evidence. We therefore only consider his motion to dismiss made at the close of all the evidence. G.S. 15-173; State v. Jones, 296 N.C. 75, 248 S.E. 2d 858 (1978).\nIn considering this assignment of error, we apply the familiar rule that upon a motion for nonsuit or dismissal all the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from it. State v. Snead, 295 N.C. 615, 247 S.E. 2d 893 (1978); 4 Strong\u2019s N.C. Index 3d, Criminal Law \u00a7 106. (1976). When so considered, if there is substantial evidence to support a finding that the offense has been committed and the defendant was the perpetrator of the offense, the motion for nonsuit should be denied. State v. Thomas, 294 N.C. 105, 240 S.E. 2d 426 (1978).\nMurder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Thomas, supra; State v. Davis, 289 N.C. 500, 223 S.E. 2d 296, death sentence vacated, 429 U.S. 809, 50 L.Ed. 2d 69, 97 S.Ct. 47 (1976).\nSince all of the evidence in this case shows that defendant intentionally shot deceased with a deadly weapon thereby proximately causing her death, we are here only concerned with whether the evidence was sufficient to permit, but not require, a jury to find that defendant acted with premeditation and deliberation.\nPremeditation may be defined as thought beforehand for some length of time no matter how short. State v. Corn, 303 N.C. 293, 278 S.E. 2d 221 (1981); State v. Thomas, supra; State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974).\nDeliberation means an intention to kill executed by the defendant in a \u201ccool state of blood\u201d in furtherance of a \u201cfixed design to gratify a feeling of revenge or, to accomplish some unlawful purpose.\u201d State v. Corn, supra; State v. Thomas, supra; State v. Perry, 276 N.C. 339, 172 S.E. 2d 541 (1970); State v. Faust, 254 N.C. 101, 118 S.E. 2d 769, 96 A.L.R. 2d 1422, cert. denied, 368 U.S. 851, 7 L.Ed. 2d 49, 82 S.Ct. 85 (1961).\nPremeditation and deliberation must ordinarily be proved by circumstantial evidence. Among the circumstances to be considered are: (1) want of provocation on the part of the deceased, (2) conduct and statements of the defendant before and after the killing, (3) threats made against the victim by defendant, (4) ill will or previous difficulty between the parties, and (5) evidence that the killing was done in a brutal manner. State v. Potter, 295 N.C. 126, 130-31, 244 S.E. 2d 397, 401 (1978); State v. Thomas, supra; State v. Fountain, 282 N.C. 58, 191 S.E. 2d 674 (1972).\nHere the evidence, when considered in the light most favorable to the State, discloses a minimum of provocation on the part of the deceased. She was in the act of delivering a gift to defendant from their children and explained that the children could not come out to see him because of illness. After refusing to enter the automobile, she was told to go back to the house. As she turned to go to the house, she was shot in the back at close range. Defendant came to the place where the victim lived armed with a shotgun, and after stating that he was going to kill her fired a shotgun at close range. There was substantial evidence of previous difficulty between the parties including previous separations, physical assaults on the victim by the defendant, and the threatened use of a deadly weapon upon the person of the victim by the defendant. We hold that there was plenary and substantial evidence which would permit the jury to draw reasonable inferences that defendant acted with premeditation and deliberation when he shot and killed his wife. The trial court properly denied defendant\u2019s motion to dismiss.\nDefendant next contends that the trial court erred by permitting the district attorney to examine him, over his objection, concerning prior convictions.\nDefendant testified in his own behalf, and on cross-examination the district attorney asked him a series of questions concerning previous convictions.\nIt is well settled in this jurisdiction that when a defendant testifies in a criminal case he may be cross-examined concerning convictions of prior unrelated criminal offenses. He may also be impeached by cross-examination concerning prior specific criminal acts or specific reprehensible conduct. However, such cross-examination must be based upon information, and the questions must be asked in good faith. State v. Williams, 303 N.C. 142, 277 S.E. 2d 434 (1981); State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980); State v. Leonard, 300 N.C. 223, 266 S.E. 2d 631, cert. denied, 449 U.S. 960, 66 L.Ed. 2d 227, 101 S.Ct. 372 (1980). It is equally well settled that a defendant may not be impeached on cross-examination by questions relative to whether he has been arrested, accused, or indicted for prior unrelated criminal offenses. State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971).\nWhether the cross-examination transcends propriety or is unfair is a matter resting largely in the sole discretion of the trial judge, who sees and hears the witnesses and knows the background of the case. His ruling thereon will not be disturbed without a showing of gross abuse of discretion.\nState v. Foster, 293 N.C. 674, 239 S.E. 2d 449 (1977). Accord State v. Clark, 300 N.C. 116, 265 S.E. 2d 204 (1980).\nIn State v. Clark, supra, this Court considered the question of whether a district attorney acted in bad faith in conducting his cross-examination. In that case, defendant contended that the district attorney had before him an F.B.I. report showing that defendant had been charged but not convicted of homicide at the time he cross-examined the defendant concerning this particular matter. In finding no error, this Court stated:\n[T]he record does not support his contention that the District Attorney acted in bad faith. The FBI report was not made a part of the record, and defendant failed to request a voir dire to determine whether the District Attorney acted in good faith. We have held that when the record contains no evidence regarding whether a District Attorney acted in good faith in inquiring into a defendant\u2019s prior criminal offenses or reprehensible conduct, the court\u2019s ruling permitting the question to be asked will be presumed to be correct. State v. McLean, 294 N.C. 623, 242 S.E. 2d 814 (1978). Furthermore, any possible prejudice to defendant was negated by the fact that he was given the opportunity to explain that he had not been convicted of homicide. State v. McLean, supra. We find no merit in this assignment of error.\nState v. Clark, 300 N.C. at 125, 265 S.E. 2d at 210.\nIn instant case, the questions directed to the defendant were all related to convictions and specific acts. During this portion of defendant\u2019s cross-examination, he answered the questions regarding prior convictions in varying degrees which ranged from admitting or denying to volunteering information about charges, acquittals, and compromises. At no place in this record do we find anything which discloses that the district attorney acted on lack of information or that he acted in bad faith in cross-examining. Thus, there is not a scintilla of evidence to show that the trial judge abused his discretion by permitting the district attorney to cross-examine defendant about prior convictions.\nThis assignment of error is overruled.\nDefendant argues that the trial judge erred by not declaring a mistrial on his own motion when during the voir dire of prospective jurors while the district attorney was trying to \u201cdeath qualify\u201d a prospective juror the juror made the statement, \u201cI don\u2019t believe in just going out and killing people,\u201d and the district attorney in reply stated, \u201cYes ma\u2019am. That\u2019s what this trial is all about.\u201d Defendant contends that the comment of the district attorney caused the jurors to form an opinion concerning defendant\u2019s guilt before any evidence was presented. We do not agree.\nWhether a motion for mistrial should be granted is a matter which rests in the sound discretion of the trial judge, State v. Dollar, 292 N.C. 344, 233 S.E. 2d 521 (1977), and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law. State v. Chapman, 294 N.C. 407, 241 S.E. 2d 667 (1978).\nIn instant case, it would seem that the most reasonable interpretation of the exchange between the district attorney and the prospective juror would be that the prospective juror meant to convey the fact that she believed in capital punishment only when the evidence justified its imposition and that the district attorney merely rejoined that this was the purpose of the trial. Apparently the exchange had little actual impact on defense counsel since he failed to move for a mistrial. We find nothing in this dialogue between the district attorney and the prospective juror which would require the trial judge to declare mistrial on his own motion.\nDefendant assigns as error the admission of certain testimony relating to prior abuse of the victim by defendant.\nBill Wilborne, the father of the victim, testified as a State\u2019s witness. On cross-examination, defense counsel questioned the witness concerning his attitude toward defendant and elicited from the witness an admission that he had shot defendant on a date prior to the death of witness\u2019s daughter. On redirect the following exchange took place:\nQ. All right, Mr. Wilborn [sic], tell the jury why you shot him.\nA. He had \u2014 she had taken out papers \u2014I had some papers taken out that he wasn\u2019t even supposed to be on the premises, and \u2014\nQ. What do you mean \u2014 not supposed to be on what premises?\nA. On my premises.\nQ. Why was he not supposed to be on your premises?\nMR. PORTER: Objection.\nMr. ASHBURN: He brought it up, Your Honor.\nCOURT: Overruled.\nException No. 23\nQ. Go ahead, sir.\nA. He was not supposed to be on my premises at all, because first of all he didn\u2019t know how to act. And the next thing, he was abusing his wife \u2014 whatever you call abusing \u2014 other words, wasn\u2019t getting along \u2014 and I had to keep her there for her protection at that time, yes. And then he was wanting to get to her there, where she was then.\nAnd so I taken out those papers to keep him off of my premises and he was going to overrule the papers\u2014\nQ. What kind of papers?\nA. The kind that you take out that you tell people when you don\u2019t want them on your premises.\nQ. All right, sir.\nA. And so he came, anyway.\nInitially, we note that it is well settled that after a witness has been cross-examined the party calling him may reexamine the witness so as to clarify the new matter elicited on cross-examination. 1 Stansbury\u2019s North Carolina Evidence, Witnesses \u00a7 36 (Brandis rev. 1973). Thus, when defense counsel sought to impeach the witness by cross-examining him concerning the shooting of defendant, the door was opened for the witness to testify as to the reason for his actions so as to restore his credibility. This evidence of prior maltreatment by defendant of his wife was competent. Its weight was for the jury. State v. Kincaid, 183 N.C. 709, 110 S.E. 612 (1922). Such evidence bears on the intent, malice, motive, and premeditation and deliberation on the part of defendant. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969). Further, this record discloses that after Mr. Wilborne testified, evidence that defendant had threatened his wife with a knife and had on more than one occasion physically assaulted her was admitted into evidence without objection. Defendant thereby lost the benefit of his objection. 1 Stansbury\u2019s North Carolina Evidence, Witnesses \u00a7 30 (Brandis rev. 1973), and cases there cited.\nFor reasons stated, this assignment of error is overruled.\nBy his assignment of error number five, defendant contends that the trial judge erred by admitting into evidence ten photographs. He argues that the number of photographs were excessive, unnecessarily cumulative, and prejudicial. Actually, eleven photographs were admitted into evidence. Nine photographs showed the scene of the crime, and two photographs depicted the victim\u2019s wounds. It is defendant\u2019s position that the two photographs showing the victim\u2019s wounds were unduly inflammatory and prejudicial since the cause of death was undisputed.\nIn North Carolina photographs are admissible to illustrate the testimony of witnesses and their admission for that purpose with proper limiting instructions is not error. State v. Horton, 299 N.C. 690, 263 S.E. 2d 745 (1980); State v. Sledge, 297 N.C. 227, 254 S.E. 2d 579 (1979). The fact that a photograph may depict a horrible and gruesome scene does not render it inadmissible into evidence when properly authenticated as a correct portrayal of conditions observed and related by a witness who uses the photograph to illustrate his testimony. State v. Temple, 302 N.C. 1, 273 S.E. 2d 273 (1981); State v. Horton, supra; State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241 (1969), death sentence vacated, 403 U.S. 948, 29 L.Ed. 2d 859, 91 S.Ct. 2283 (1971).\nDefendant relies heavily upon State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963), and State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969). These cases are distinguishable from instant case.\nIn Foust the State offered into evidence ten color photographs showing the death wound to the victim\u2019s chin. This Court, finding other errors, granted a new trial and noted, \u201cUnder the circumstances here it seems that there was an excessive use of these ten photographs by the State.\u201d 258 N.C. at 460, 128 S.E. 2d at 894.\nIn Mercer the State introduced three photographs of the body of a five year old victim at the funeral home. The child\u2019s lifeless body was shown with projecting probes which indicated the point of entry, the course, and point of exit of the bullet that caused his death.\nIn the case before us for decision, there were only two photographs of the victim\u2019s body. One of the photographs showed the face of the victim and was relevant for proper identification by the testifying witnesses, and the other photograph showed the back of the neck of the victim and was used by the witnesses in testifying to their observations and the cause of death. The remaining photographs were merely pictures of the scene and were in no way gruesome or inflammatory. There is no merit in defendant\u2019s argument that these photographs of the scene had no probative value and were therefore prejudicial. Each photograph was taken from a different angle and was used to show the position of the body, and the distance to a curve in the road from which the evidence tended to show that defendant looked back before continuing his flight. These photographs were important to show the distance from which the gun was fired and defendant\u2019s actions after the shooting. They tended to bear upon the question of intent, premeditation, and deliberation.\nDefendant\u2019s argument that the photographs were irrelevant since the cause of death was uncontroverted is without merit. We recently addressed a similar contention in State v. Elkerson, 304 N.C. 658, 285 S.E. 2d 784 (1982). We there stated:\nWe have held that a stipulation as to the cause of death does not preclude the State from proving all essential elements of its case. (Citations omitted.) It is also established by our case law that in a homicide prosecution photographs showing the condition of the body when found, its location when found, and the surrounding scene at the time the body was found are not rendered incompetent by the portrayal of the gruesome events which the witness testifies they accurately portray. (Citations omitted.)\nId. at 665, 285 S.E. 2d at 789. Cf. State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979).\nWe therefore hold that under the circumstances of this case, the trial judge correctly admitted the challenged photographs into evidence.\nFinally, defendant assigns as error the denial of his motion to strike a portion of a witness\u2019s answer to a question asked him on cross-examination by defense counsel.\nDon Lee Little, a State\u2019s witness, was cross-examined by defense counsel concerning when he had heard defendant say that \u201cI\u2019m going to kill me somebody.\u201d Defense counsel asked: \u201cDon, when do you say this happened,\u201d to which the witness replied, \u201cThree weeks before this -- before he murdered his wife.\u201d Defendant contends that the trial court erred in denying his motion to strike the portion of Little\u2019s answer, \u201cbefore he murdered his wife,\u201d in that this portion of the answer constituted an expression of an improper opinion as to the ultimate issue the jury was to decide.\nIt seems clear from a reading of the subsequent answers of the same witness that he used the term \u201cmurdered\u201d in the lay sense to mean \u201ckilled.\u201d\nWe are of the opinion that the trial judge should have allowed the motion to strike. However, we are convinced from an examination of this witness\u2019s testimony and the context in which the answer was elicited that the failure of the trial judge to grant defendant\u2019s motion to strike and the admission of this evidence had little impact upon the jury. When compared with the overwhelming evidence of defendant\u2019s guilt, we do not believe that there is a reasonable possibility that the admission of this evidence might have contributed to defendant\u2019s conviction. State v. Knight, 282 N.C. 220, 192 S.E. 2d 283 (1972). We therefore hold that the trial judge\u2019s ruling in refusing to strike this evidence was harmless error.\nWe have carefully examined this entire record and find no error warranting that the verdict returned and the judgment imposed be disturbed.\nNo error.", "type": "majority", "author": "BRANCH, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Ralf F. Haskell, for the State.", "Cecil Lee Porter for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. McKINNLEY JUNIOR CALLOWAY\nNo. 165A81\n(Filed 2 June 1982)\n1. Homicide \u00a7 25.2\u2014 premeditation and deliberation \u2014 sufficiency of evidence\nThe trial court properly denied defendant\u2019s motion to dismiss where there was plenary and substantial evidence which would permit the jury to draw reasonable inferences that defendant acted with premeditation and deliberation when he shot and killed his wife.\n2. Criminal Law \u00a7 86.2\u2014 examination of defendant concerning prior convictions proper\nThe trial judge did not abuse his discretion by permitting the district attorney to cross-examine defendant about prior convictions where all the questions directed to the defendant were all related to convictions and specific acts and where the record failed to reveal that the district attorney acted on lack of information or that he acted in bad faith in so cross-examining.\n3. Criminal Law \u00a7 128.2; Jury \u00a7 6.4\u2014 \u201cdeath qualification\u201d of juror \u2014 comment by district attorney\nWhere a juror made a statement that \u201cI don\u2019t believe in just going out and killing people\u201d while the district attorney was trying to \u201cdeath qualify\u201d the prospective juror during the voir dire and the district attorney replied, \u201cYes ma\u2019am. That\u2019s what this trial is all about,\u201d there was nothing in the dialogue which would require the trial judge to declare a mistrial on his own motion.\n4. Homicide \u00a7 17.2\u2014 evidence of prior abuse of victim by defendant properly admitted-restoring witness\u2019s credibility\nWhere defense counsel sought to impeach a State\u2019s witness by cross-examining him concerning the witness\u2019s shooting of defendant, the door was opened for the witness to testify as to the reason for his actions so as to restore his credibility, and testimony by the witness of prior maltreatment by defendant of his wife, the victim, was competent.\n5. Homicide \u00a7 20.1 \u2014photographs of victim and scene of crime properly admitted\nThe trial court properly admitted a series of eleven photographs, nine of which showed the scene of the crime and two of which depicted the victim\u2019s wound, to illustrate the testimony of witnesses. Defendant\u2019s argument that the photographs were irrelevant since the cause, of death was uncontroverted was without merit.\n6. Criminal Law \u00a7 95.1\u2014 denial of motion to strike answer \u2014 harmless error\nWhere a witness testified that he had heard defendant say he was going to kill someone \u201cthree weeks before this \u2014before he murdered his wife,\u201d the trial court erred in denying defendant\u2019s motion to strike the portion of the witness\u2019s answer, \u201cbefore he murdered his wife.\u201d However, when compared with the overwhelming evidence of defendant\u2019s guilt, and when examined in the context of the witness\u2019s testimony, the error was found to be harmless.\nAPPEAL by defendant from Lamm, J., at the 7 July 1981 Criminal Session of Wilkes Superior Court.\nDefendant was charged in a bill of indictment, proper in form, with the first-degree murder of his wife, Willa Wilborne Calloway.\nThe State offered evidence tending to show that defendant and his wife were separated and that she lived in the home of her father which was located a short distance from the home formerly occupied by her and defendant. On 11 January 1981 at approximately 2:30 p.m., defendant came to the residence of Willa\u2019s father, parked his automobile, and blew the horn. Willa asked her brother, Lawrence, to go with her to the automobile to give her husband a gift from their children. After Willa delivered the gift, defendant asked to speak to her alone and she refused. He then asked her to let the children come out to talk to him, but she declined to do so because the children were suffering with colds. Defendant repeated his request that she get into the car several times, and upon her repeated refusals, he finally told her to go back to the house. As Willa and her brother started across the road, defendant said to Willa, \u201cI\u2019m going to kill you.\u201d Lawrence turned and saw defendant stick a shotgun out the window, aim it at Willa, and pull the trigger. The victim was about five feet from the end of the gun barrel when the blast struck her in the back of the neck. Defendant drove away at a high rate of speed and was observed to look back as he reached a curve in the road.\nPolice officers were called to the scene and found the victim\u2019s body lying in the highway with her head pointed toward her father\u2019s dwelling and located about one foot from the edge of the road.\nThere was medical testimony to the effect that the victim died as a result of a gunshot wound in the back of her neck, and in the opinion of the expert witness, the shot was fired from about three and one-half feet away. The State also offered evidence tending to show that there had been a long history of marital difficulties between defendant and his wife, and that defendant had physically abused her on several occasions. On one occasion about six months prior to the shooting, he had held a butcher knife to his wife\u2019s throat and threatened to kill her.\nDefendant testified and stated that on 11 December 1981 he had been drinking \u201cwhite\u201d liquor from 7:00 a.m. to 2:00 p.m. when he called his wife, who told him that she would send the children out to see him if he came to her father\u2019s home. Defendant stated that he normally carried his shotgun in the car, and on the day preceding the shooting, he had used it to shoot at a squirrel\u2019s nest. He did not recall reloading the single shot shotgun after firing at the nest. He further testified that when he arrived at his father-in-law\u2019s house on the day of the shooting, his wife refused to let him see his children because he had been drinking. She also told him that she was going to court and fix it so he would not be able to see the children at all. When his wife started to walk away, he reached into the back seat, obtained his shotgun, and pointed it at her in an attempt \u201cto aggravate her.\u201d He pulled the hammer back thinking it was unloaded and \u201cthe gun went off.\u201d He fled because he was frightened.\nDefendant also offered the testimony of James Redman, who testified that he saw defendant drinking \u201cwhite\u201d liquor on the morning before the shooting.\nIn rebuttal the State offered Officer Walsh, who testified that he apprehended defendant at about 4:10 p.m. on 11 December 1981 and at that time defendant walked and talked in a normal manner. He did not detect the odor of alcohol about defendant\u2019s person.\nThe jury returned a verdict of guilty of first-degree murder. Defendant appealed from a judgment imposing a sentence of life imprisonment.\nRufus L. Edmisten, Attorney General, by Ralf F. Haskell, for the State.\nCecil Lee Porter for defendant-appellant.\nThe State announced at the beginning of the sentencing hearing that based upon its review of the evidence there was no evidence of any aggravating circumstances as enumerated in G.S. 15A-2000(e). The trial court concurred in the State\u2019s evaluation of the evidence and pronounced a minimum/maximum term of life imprisonment. Since the State failed to produce evidence of an aggravating circumstance in either the guilt determination phase or the sentencing phase, the trial court properly imposed a life imprisonment sentence without the intervention of the jury at the sentencing phase of the trial. See State v. Johnson, 298 N.C. 47, 79-80, 257 S.E. 2d 597, 620 (1979)." }, "file_name": "0747-01", "first_page_order": 779, "last_page_order": 790 }